When seeking review of a lower court’s ruling, try not to get yourself in trouble by sounding disrespectful of the judge’s decision
When appealing a ruling by a lower court, take care in how you characterize the court’s mistake in your briefing to avoid sounding disrespectful and undermining your credibility with the higher court, or worse, having your brief struck, or being held in contempt or otherwise sanctioned.
A recent decision in which a state appellate court excoriated a district attorney for asserting that the trial court had “fabricated [a] legal theory” in ruling against him underscores the importance of this advice. The district attorney, Todd Spitzer of Orange County, contended in his appellate brief that the trial court had “fabricated a new requirement” for determining whether a police officer had legally ordered a driver out of his car following a legitimate traffic stop.
The Court of Appeal for the Fourth District told him he better watch it and not write something like that again.
“We advise the district attorney in the future to be more cautious and consider his language more carefully when challenging a ruling of a trial court in an appellate brief, or he may be subjection to sanctions,” wrote Fourth Appellate District Justice Eileen C. Moore in People v. Ramirez (2024) 104 Cal.App.5th 315, 320. “Words are to lawyers, as scalpels are to surgeons. They are tools to be used with precision.” (Id.) The other two justices on the panel, Thomas M. Goethals and Martha K. Gooding, concurred. (Id. at p. 330.)
While Moore noted that “fabricate” does have a neutral meaning—“to construct from [usually] standardized parts”—she pointed out that the most common definition is “to make up for the purpose of deception” as in “accused of fabricating evidence.” (Ramirez, supra, 104 Cal.App.5th at p. 320 (citing Merriam-Webster’s Collegiate Dict. (11th ed. 2007) p. 447, col. 1).)
Moore and the rest of the panel ultimately agreed with Spitzer and ruled that the trial court had indeed applied a more stringent standard than constitutionally required. (Ramirez, supra, 104 Cal.App.5th at pp. 319, 328.) But the justices still took issue with Spitzer’s contention that the trial court had done so “in defiance of United States and California Supreme Court precedent.” Justice Moore wrote that Spitzer’s language implied that the trial court judge had acted in bad faith in granting the defense’s motion to suppress the evidence, in the form of a handgun and police officers’ testimony concerning discovery of the gun. (Id. at pp. 319-320.)
“[B]efore we more fully discuss the search and seizure issues, there is another issue we need to address in this opinion: the respect attorneys owe to trial court judges when challenging their ruling on appeal,” she wrote. She cited Bus. & Prof Code, § 6068, subds. (a)–(b) in noting that “[i]t is the duty of an attorney to … (b) maintain the respect due to the courts of justice and judicial officers” and that under Cal. Rules of Court, rule 9.7, “the current oath taken by every attorney on admission to practice law includes the following promise: `As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy and integrity.’” (Ramirez, supra, 104 Cal.App.5th at p. 319.)
Spitzer, through his deputy, explained at oral argument that his office did not intend to suggest that the trial court had acted in bad faith in issuing its ruling. The deputy told the appellate panel that another deputy who had written the brief merely meant that the trial court’s ruling was “inconsistent with or contrary to established precedent.” Even so, in Moore’s and the rest of the panel’s eyes, Spitzer still failed to comply with his ethical duties in characterizing the trial court’s error. “[T]he written assertions in the district attorney’s briefs … are subject to misinterpretation and are unacceptable,” Moore wrote. (Ramirez, supra, 104 Cal.App.5th at p. 320.)
Attorney Cassidy Chivers, who specializes in legal malpractice law, told us that the Ramirez decision may be part of an emerging trend. She pointed to a 2023 decision where state bar officials placed an attorney on probation, suspended his license, and imposed other penalties after he argued on appeal—without providing any supporting evidence—that a trial court judge had manipulated the law in refusing to grant his request for attorneys’ fees because she became biased against him once he disparaged another judge at oral argument for his lack of “functionality.” (See In the Matter of Pavone (Review Dept. 2023) SBC 20-O-30496 [nonpub. opn.].)
Leading up to the state bar case, the Fourth District Court of Appeal determined that the trial court judge properly exercised her discretion and followed appropriate legal principles. (Martinez v. O’Hara (2019) 32 Cal.App.5th 853, 855.) The Fourth District also concluded that Pavone’s use of the word “succubustic” in describing the trial court’s ruling demonstrated gender bias and that this language and his insistence that the judge had intentionally refused to follow the law were improper. (Id. and at pp. 857-858) (noting that a “succubus” is a demon that takes female form and engages in sexual intercourse with men while they sleep).) The appellate court then filed a complaint against him with the state bar for committing misconduct: “[M]any of the words and phrases in the notice of appeal have no place in a court filing. We cannot understand why [Pavone] thought it wise, much less persuasive, to include the words ‘disgraceful,’ ‘pseudohermaphroditic misconduct,’ or ‘reverse peristalsis’ in his notice of appeal.” (Id. at p. 858; see Pavone, SBC 20-O-30496, pp. 8-9.)
The review department of the state bar rejected Pavone’s argument that his allegations concerning the trial court judge’s integrity and her “intellectual dishonesty” were protected by the First Amendment of the United States Constitution: “An attorney’s demeaning statements that contain unsupported factual allegations made in reckless disregard for the truth are not constitutionally protected,” the review department wrote in Pavone at p. 16, citing the state supreme court in Ramirez v. State Bar (1980) 28 Cal.3d 402, 411.
“It may be that regulators will start to take a harder look at these kinds of reckless comments that disparage and impugn the integrity of judges—both in the courtroom and the public arena—given the uptick in serious threats and attacks on judges and their families,” Chivers told us, noting that the United States Congress passed the Judicial Security and Privacy Act in 2021 to protect the personal addresses and other privacy interests of federal judges following the shooting death of a federal judge’s son at the judge’s home in New Jersey. “These aren’t theoretical, cautionary tales,” she said. Just last month, the state bar’s Committee on Professional Responsibility and Conduct, which Chivers chairs, discussed amending California’s code of professional conduct to clarify how statements by a lawyer that threaten or attempt to threaten a judge or judicial officer, as well as statements like Pavone’s, run afoul of the rules.
While In the Matter of Pavone and People v. Ramirez may be part of a new trend, the premise that “an appellate brief ‘containing matter manifestly disrespectful toward the trial judge is to be deemed contempt of the appellate court’” is a long-standing rule. (People v. Ramirez, supra, 104 Cal.App.5th 315 at p. 319.) Justice Moore in Ramirez relied on a more than 100-year-old decision by the Court of Appeal for the Third District to support this assertion. (Id. (citing First Nat’l Bank v. Superior Court (1909) 12 Cal.App. 335, 348).) In First Nat’l Bank, the appellate court came close to striking the petitioner’s brief, in which counsel for the bank referred to an order of the lower court as “opera bouffe” (French comic opera) and its appointment of receivers and retention of a piece of property that the bank was trying to obtain as “a most covetous and wholly unwarranted usurpation of power.” (First Nat’l Bank, supra, 12 Cal.App. at pp. 348-349.) Given that the lower court had been directing the receivers in the discharge of their duties for “many months” with the acquiescence of the bank and given that the bank tried to levy execution on the property without the court’s permission, the appellate court found the comments of the bank’s attorney “gratuitous,” “without the slightest warrant or justification,” and in violation of his ethical duty to “maintain the respect due to the courts of justice and judicial officers.’’ (Id. at p. 349 (citing Code Civ. Proc., sec. 282).) Only his “frank disavowal” to the appellate court “of any intention to be disrespectful” and his “expressions [] [] of sincere respect for the trial court,” spared the attorney from sanctions. Even so, in ruling against the bank, the appellate court noted, “We [] felt ourselves compelled to take notice of the matter that counsel might not assume this court to be indifferent to the observance of the amenities and courtesies which should characterize the conduct of both bench and bar toward each other.” (Id.)
The appellate court in First Nat’l Bank reached further back in time—to two state supreme court decisions from the 1880s—to support the premise that an attorney who files an appellate brief containing language disrespectful to the lower court will find himself in contempt of the higher court. (See First Nat’l Bank, supra, 12 Cal.App. at p. 348 (citing Friedlander v. Sumner G. & S. M. Co. (1882) 61 Cal. 116 and Sears v. Starbird (1888) 75 Cal. 91).) In the latter two cases, the high court did strike the briefs in question. The attorney in Friedlander avoided being held in contempt by explaining that, even though his name was on the brief, it was written by someone else, he had marked the objectionable language for erasure but accidentally filed the draft containing it, and he had sent a copy of a letter disavowing the language to the trial judge. (Friedlander, supra, 61 Cal. at p. 117.) In Sears, the court dismissed the appeal but gave the attorney, who had written that the lower court had ruled for the opposition out of “fullness of [] love for … the parties to it, or their counsel,” 30 days to file a “proper” brief. (Sears, supra, 75 Cal. at p. 93.)
So, what legal writing advice should an attorney who is appealing a lower court’s decision follow to avoid getting in trouble with the appellate court or state bar?
First and foremost, be respectful, Chivers advised. Do not impugn the integrity of the judge or malign their motives. If you really do have proof of bias, then file a judicial ethics complaint and leave that point out of your briefing. “Collateral attacks in briefing will gain nothing but a potential disciplinary referral,” Chivers said. “It is not zealous, but stupid and short-sighted advocacy.”
After reviewing People v. Ramirez, legal writing expert Ross Guberman, author of Point Made: How to Write Like the Nation’s Top Advocates acknowledged that “[i]t can be tough to know where to draw the line between ‘zealous advocate’ and ‘over-the-top,’ especially because many courts indulge in heated rhetoric themselves.
“But judges are especially sensitive to language suggesting bad faith on the part of their colleagues, as ‘fabricate’ may have done here, even if unintentionally. Better to say that ‘no case law supports’ a standard [applied by the trial court].”
Appellate specialist Polly J. Estes agreed. She told us that she advises appellate brief writers to avoid characterizing the lower court’s ruling altogether. “For my headings, I always stick with the verb ‘erred,’” she said. “Use a very neutral verb that does not imply any kind of malice or bad intent by the trial court.”
Estes said that it is not unusual for trial attorneys and their clients who have lost a hard-fought case to feel like the judge was biased against them. “A lot of our job as appellate attorneys is to take the trial attorney’s assumption of ill will on the part of the trial court judge out of the case,” she said. “They’re often too emotionally involved and too close to the case to be able to see how anyone could disagree with them in good faith.” When writing an appeal, simply state what the trial court judge did, what the controlling law requires, and explain how the trial court’s ruling does not comport with the controlling law.
“Let the force of your logic make it clear that the [lower court] erred,” Estes said. “We must always remember that all trial court judges, whether in California or the federal courts, are extremely overworked and often must switch subject matters on a dime. When we’re preparing an appeal, it’s our job to simply explain how the trial court erred and to do so in a respectful tone that always presumes good faith on behalf of the judge.”